The modern tort of negligence
A duty is imposed on a person by law to act with
care towards others. If this duty exists and there
is a failure to act carefully and another suffers
loss, then the tort of negligence is committed.
The modern tort of negligence
The modern version of negligence was
established in 1932 in the decision in
Donoghue v Stevenson [1932] AC 562
Negligence has become the most important area
of tort law
Donoghue v Stevenson [1932] AC 562
A manufacturer of products which he sells in such a form as
to show that he intends them to reach the ultimate consumer
in the form in which they left him with no reasonable
possibility of intermediate examination, and with the
knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an
injury to the consumer’s life or property, owes a duty to the
consumer to take that reasonable care.
Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 599
The neighbour principle
There must be, and is, some general conception of relations
giving rise to a duty of care, of which the particular cases found
in the books are but instances … That rule that you are to love
your neighbour becomes, in law, you must not injure your
neighbour; and the lawyer’s question, ‘who is my neighbour?’
receives a restricted reply. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, in law, is my neighbour?
The answer seems to be – persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 580
Cole v South Tweed Heads Rugby League
Football Club Ltd [2004] HCA 29
Facts:

Ms Cole attended a champagne breakfast at the South Tweed
Heads Rugby League Football Club

She spent the day drinking at the Club

The Club stopped serving Ms Cole after 12.30 pm, but her
friends provided her with drinks for the rest of the afternoon

At 5.30 pm the Club’s manager asked Ms Cole to leave the
premises after she was seen behaving indecently with 2 men
Cole v South Tweed Heads Rugby League
Football Club Ltd

The manager offered Ms Cole a taxi home, but Ms Cole
rejected the offer in blunt and abusive terms

She then left the Club with the 2 men, who assured the manager
that they would take care of her

At 6.20 pm Ms Cole was struck by a car near the Club and was
seriously injured

She was found to have a blood alcohol concentration of 0.238%
Who was responsible for Ms Cole’s injuries? Why?
Negligence and harm
Careless acts do not always amount to
negligence
In negligence, a person is only liable for harm
that is the foreseeable consequence of their
actions, that is, failure to exercise reasonable
care and skill
Negligence defined
Negligence is

the omission to do something that a reasonable
person would do
or

doing something which a prudent and
reasonable person would not do
Negligence
In order to succeed in a negligence action the plaintiff
must establish on the balance of probabilities that:

the defendant owed the plaintiff a duty of care

the defendant fell below the required standard of
care (breach of duty), and

the plaintiff suffered damage that was:
 caused by the defendant’s breach of duty, and
 not too remote
Duty of care
The defendant owes the plaintiff a duty of care if it is
reasonably foreseeable that any carelessness on the part of the
defendant could harm the plaintiff. This is a question of fact.
CASE: Grant v Australian Knitting Mills (1933)
CASE: Levi v Colgate-Palmolive Pty Ltd (1941)

A manufacturer does not owe a duty of care to every
consumer (e.g. one with abnormal sensitivities)

However, there may be special circumstances that
give rise to a duty to take special precautions to
protect abnormal persons known to be likely to be
affected
Situations in which a duty of care applies





Negligent misstatements – in relation to
people being advised
Road users – to other road users
School authorities – to students
Occupier of premises – to persons entering
the premises
Bailee of goods – to bailor
Situations in which a duty of care applies




Supplier of goods or services – to persons
being supplied
Local councils – e.g. to persons requiring
zoning information
Solicitor holding will – to executor named in
will
Dog owners – to people who may be bitten
Positive action at common law

At common law, there will be no breach of duty
where the injury arises as a result of a failure to act
(i.e. no duty to effect a rescue)

Exceptions include:
 doctor and patient
CASE: Rogers v Whitaker (1992)



school authority and students
local councils
statutory authorities
Positive action in the legislation

Legislation has, in relation to professionals
and statutory authorities, introduced a new
test for standard of care


professionals: Part X, Div 5 – Wrongs Act
1958 (Vic)
public or other authorities: Part XII – Wrongs
Act 1958 (Vic)
Duty of care


At one time, the defendant also owed the plaintiff a duty of
care if there was proximity between the defendant and the
plaintiff
Proximity
•
•
•
means nearness or closeness
is a limitation on the test of reasonable foreseeability
can be:
–
physical, in the sense of space and time
–
circumstantial, in the sense of a relationship such as
employer-employee or professional adviser-client
–
causal, in the sense of the closeness or directness
between the defendant’s actions and the damage
Duty of care

Proximity is no longer a common law test for duty
of care as today it is determined by the application
of the ‘foreseeability’ test and whether there was a
vulnerable relationship between D and P

The test of proximity was rejected in the case of
Sullivan v Moody (2001)
Duty of care
Three factors are required to be considered for
vulnerability:
1.
Was the defendant in a controlling position?
1.
Was the plaintiff reliant on the defendant?
2.
Was the defendant in a position to be protective of
the plaintiff?
Who was responsible for Ms Cole’s injuries?
Issues before the court:

Did the Club owe a duty to take reasonable care:

to monitor and moderate the amount of alcohol served to Ms
Cole?


that Ms Cole travelled safely away from the Club’s premises?
Does a general duty of care exist to protect persons from harm
caused by intoxication following a deliberate and voluntary decision
on their part to drink to excess?

Did the car driver owe Ms Cole a duty of care?

Did Ms Cole in any way contribute to her own injuries?
Proximity in
psychological damage cases

Proximity is still important in psychological
damage cases
CASE: Jaensch v Coffey (1985)
CASE: Tame v New South Wales; Annetts v Australian
Stations Pty Ltd (2002)
CASE: Gifford v Strang Patrick Stevedoring Pty Ltd
[2003]
Purely economic loss

Financial loss unaccompanied by physical injury to
person or property

Proximity is also an important test in economic loss cases

Courts were initially reluctant to allow recovery

Now recoverable in certain situations including:
 relational interests
 negligent misrepresentation
Negligent misrepresentation

Economic loss caused by negligent
misrepresentation is recoverable where:
 a special relationship exists between the
parties;
 the defendant accepted responsibility in the
circumstances of the advice; and
 the plaintiff relied upon the misrepresentation.
CASE: Hedley Byrne & Co Ltd v Heller and Partners
Ltd [1964]
Can a disclaimer remove
the duty of care?

A representor may remove any duty of care by
using an appropriate disclaimer.
CASE: Hedley Byrne & Co Ltd v Heller and Partners
Ltd [1964]
Negligent misrepresentation

‘Special relationship’ extended:
CASE: Mutual Life and Citizens’ Assurance Co Ltd v
Evatt (1968)
CASE: L Shaddock & Associates Pty Ltd v Parramatta
City Council (1981)
Duty of care defined narrowly

The High Court has made it clear that the key to
the existence of a duty of care is whether the
information or advice was prepared for the
purpose of inducing the representee to act in a
particular way.
CASE: Esanda Finance Corporation Ltd v Peat
Marwick Hungerfords (1997)
Relational interests

Where the plaintiff is not directly affected but is
affected because of their relationship with the
primary victim
CASE: Perre v Apand (1999)
CASE: Johnson Tiles Pty Ltd v Esso Australia [2003]
CASE: Hill v Van Erp (1997)
CASE: Caltex Oil (Australia) Pty Ltd v The Dredge
‘Willemstad’ (1976)